Bonsera v. New York State Department of Environmental Conservation

130 A.D.2d 491, 514 N.Y.S.2d 902, 1987 N.Y. App. Div. LEXIS 46462

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 4, 1987
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78 to review a determination of the Commissioner of the New York State Department of Environmental Conservation, dated April 24, 1986, which, after a hearing, denied the petitioners’ application for a permit to operate a solid waste transfer facility and ordered the petitioners to cease operations at the subject facility not later than 30 days after service of the Commissioner’s decision, (1) the petitioners seek review of that determination, and (2) the New York State Department of Environmental Conservation, the Commissioner, and the Administrative Law Judge appeal, by permission, from so much of an order of the Supreme Court, Suffolk County (Abrams, J.), entered June 30, 1986, as granted the petitioners’ application for a preliminary injunction.

Ordered that the appeal from the order entered June 30, 1986 is dismissed as academic, as the proceeding is decided on the merits herewith; and it is further,

Adjudged that the determination dated April 24, 1986 is confirmed and the proceeding is dismissed on the merits; and it is further,

Ordered that the respondents-appellants are awarded one bill of costs.

We have reviewed the record and» have determined that there was substantial evidence to support the Commissioner’s determination that the petitioners failed to demonstrate that their facility was capable of compliance with the standards for such facilities established in 6 NYCRR 360.8. Denial of the operating permit was therefore proper (see, 6 NYCRR 360.2, 360.3; 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176). Thompson, J. P., Lawrence, Weinstein and Rubin, JJ., concur.